Lawsuit strikes at heart of liver controversy

Updated 9:51 pm, Wednesday, September 26, 2012

ALBANY — The state Department of Agriculture and Markets and two downstate foie gras producers have been sued by the California-based Animal Legal Defense Fund in an effort to ban the sale of the delicacy, which is the fattened livers of ducks and geese that are force-fed in the last weeks of their lives.

The suit, filed Tuesday in state Supreme Court in Albany by local attorney Jonathan G. Schopf on behalf of ALDF, contends that force-feeding, also known by the French term gavage, causes the birds' livers to grow to 10 times their normal size and induces hepatic lipidosis, a liver disease. Because state agriculture law requires that "the product of a diseased animal" be declared an adulterated food and banned, the suit says the department is not following its own regulations by allowing the sale of foie gras.

More Information

Besides the state agency, the suit names Hudson Valley Foie Gras, which bills itself as the largest foie gras farm in the country and slaughters about 250,000 ducks annually, and La Belle Farm, both in Ferndale, Sullivan County, near Monticello. They are the only commercial foie gras producers in the country. California's ban on the production and sale of foie gras went into effect July 1.

"When the department fails to condemn diseased poultry products, they are failing to comply with (the law)," said Stephen Wells, executive director of ALDF, in a statement announcing the suit. "Countless birds are suffering because of the state of New York's negligence."

A spokesman for the agriculture department said the agency has not received notice of the suit and had no comment at this time.

Marcus Henley, operations director for Hudson Valley Foie Gras, who was also unaware of the suit before being contacted by a reporter, said he was confident the action would be thrown out. A similar suit, filed against the same farms and the agriculture department by the national Humane Society, was dismissed in 2008 by state Supreme Court Justice John Egan Jr. on the grounds that the Humane Society did not have standing to sue on behalf of animals raised for food.

While agreeing that the earlier suit's "voluminous exhibits ... certainly show harm to the subject animals," Egan concluded, "the interests protected by the Agriculture and Markets law relating to adulterated food products do not include the interests of the animals raised for slaughter. ... Nothing in the language of the state suggests that the Legislature intended ... to protect the interests of the animals themselves."

Schopf, who took the new case pro bono, said the suit he filed has the same goal: to ban the production and sale of foie gras. But his legal strategy is different. In the earlier suit, the plaintiffs claimed that they suffered legal injury not from consuming foie gras, but as taxpayers. In the new suit, the plaintiffs include the ALDF as well as Daniel Stahlie, a state resident who, the suit says, would prefer to eat foie gras that is not the result of force-feeding, "but it would be virtually impossible for him, as a consumer, to verify the safety and production method of every piece of food he eats."

The suit goes on, "By approving force-fed foie gras for human consumption and allowing it to remain in the marketplace, State Respondents have injured Mr. Stahlie's interests by causing him to consume diseased, dangerous and illegally manufactured products."

California's ban on foie gras, passed by the state Legislature in 2004, allowed an eight-year window for California producers to find a way to make foie gras without force-feeding. None was found. A single producer in Spain, Pateria de Sousa, sells foie gras from ducks and geese that naturally gorge themselves, but the vast majority of the estimated 23,000 tons of foie gras sold worldwide ever year is the result of force-feeding. Americans consume about 340 tons annually, meaning the average U.S. resident every year eats 0.05 ounce of foie gras, or 1.4 grams. In France, annual production is about 18,000 tons. Approximately a dozen countries have banned it on humanitarian grounds.

A news release from ALDF says, "Recent investigations into Hudson Valley Foie Gras revealed appalling conditions." Hudson Valley Foie Gras, which calls itself "the humane choice," says its ducks are healthy and do not suffer. It has a standing policy to allow visitors to see the birds' living conditions, said Henley, adding, "We're the most-visited poultry farm in the world."